The moneyed backers of Sen. Grace Poe were told that Rizalito David’s disqualification case against her was just a minor inconvenience and passing distraction. They were made to believe that the case would be dismissed by the Senate Electoral Tribunal (SET), because it had dropped the residency issue in the complaint.
Poe and her lawyers assured the deep pockets that if the case enters into the period of oral arguments, they had all the firepower to make short work of David and his lawyer (he has one lawyer, Manuelito Luna).
Instead, the duel at the tribunal last Monday turned out to be a real contest. The oral arguments were reminiscent of David’s duel with Goliath in the Bible. Rizalito’s slingshot had some real stones to fire. Poe’s lawyers had only blanks for bullets.
David’s counsel forcefully presented their main argument that when Ms. Grace Poe- Llamanzarees ran for senator in the May 2013 election, she did not possess the legal qualification of being a natural-born Filipino citizen.
Her claim of being a foundling does not help her. It rather underscores the fact that her parentage is unknown. She must still prove that she is a natural-born Filipino.
The counter-argument of Ms. Poe’s two lawyers was to claim that under customary international law, Ms. Poe, as a foundling, should enjoy the presumption of being a natural-born citizen of the Philippines. They glossed over the question of who her biological parents are.
Poe naturalized, not natural-born, citizen
Poe’s counsel projected that the SET hearing would be a long drawn-out affair, and intended to dribble the proceedings so they would stretch over weeks and even months.
That outlook changed dramatically when Senior Associate Justice Antonio Carpio, SET chairman, weighed in with his questions and comments. You could feel the ship tilting in favor of petitioner Rizalito David as people comprehended what they were hearing.
Justice Carpio logically and clearly spelled what he believes is the legal status today of Senator Poe, with respect to her citizenship.
Carpio said Poe can be considered a Filipino under international customary law, but only as a naturalized citizen, not as a natural-born citizen.
He cited Article 4, Section 1 of the 1935 Constitution that he said should apply to Poe. The fifth paragraph of the constitutional provision considers as citizens of the Philippines “those who are naturalized in accordance with law.”
“We do not follow international customary law because our Constitution has primacy,” Carpio explained.
“If there is a customary international law saying foundlings can be deemed citizens of the country where they are found, we apply that under the principle of incorporation. It is deemed as municipal law.”
“But you are still a naturalized citizen, not natural-born. Because if customary international law says a foundling is natural-born, it will violate our Constitution and we cannot apply it here.”
The SET chairman said the principle of jus sanguinis (right of blood) will be the sole basis for one to be considered a natural-born Filipino citizen.
He added that the Philippine Constitution requires either of the parents of Ms. Poe to be a Filipino citizen for her to be a natural-born citizen.
“To be natural-born, you must show blood relation,” Carpio pointed out. Ms. Poe should now prove that her biological parents are Filipinos.
With this, the burden of proof shifts to Poe to prove that she is a natural-born Filipino citizen.
Carpio said foundlings like Poe could still prove their citizenship through DNA matching.
“If tomorrow you happen to find out by DNA matching that your parent is Filipino, you can still prove that you are natural-born,” he added.
Another justice member of the tribunal, Supreme Court Associate Justice Arturo Brion, supported Carpio’s position. He said that it is now up to Poe to prove that she is a natural-born citizen of the Philippines.
“Because Poe’s parents are unknown, she must now prove that [they are Filipinos],” he added.
Shift of the burden of proof
At the close of the first day of oral argument, the Poe camp looked “shocked and awed.” They were at a loss on what to say or do next.
(As readers may remember from the US invasion of Iraq in 2003, “Shock and awe” was the military doctrine used by the US military in subduing Saddam Hussein and his dreaded armed forces. It seeks to paralyze and destroy the enemy’s will to fight.)
Poe’s counsel had entered the argument hoping to squarely place the burden of proof on David and his counsel. Since David filed the complaint of disqualification, he and his counsel must prove that Senator Poe is not a natural-born Filipino citizen.
By the time the first day of hearing ended, the burden of proof had decisively moved to the Poe camp. They would have to prove that the senator is a natural-born citizen, to prevent her ouster from the Senate. That is the only way to show that she is qualified to retain her seat.
It is a measure of how gravely the Senator’s position was battered, that towards the end Poe’s lawyers, Alex Poblador and George Garcia, were telling the court that the Senator already underwent DNA testing “with a probable biological match” to prove her Filipino lineage. And other tests are under way with possible siblings.
They told the tribunal that the DNA results would be available in two to three weeks.
The beginning of the end
However the DNA tests turn out, Senator Poe and her campaign have sustained a blow to its confidence and its case that is potentially crippling.
There comes a moment for every campaign for the presidency, when it must face adversity and face a moment of truth – when a decision must be made whether to push on or turn back, because the prize may be unattainable.
Justice Carpio’s comments on the Senator’s citizenship status were declarative and crushing. But he is not the tribunal. There are eight other members. Significantly, however, the two other justice members of the tribunal appeared to share Carpio’s opinion.
It may be that last Monday, September 21, at a hearing room of the Supreme Court, the campaign of Grace Poe for the presidency experienced the beginning of the end.
This is the point where Ms. Poe must confront the hard reality that there are serious questions about her qualifications for high office, as well as questions about her fitness for high office.
This is where some in the media will begin to wonder whether it is wise to give her such a large megaphone to promote her candidacy.
The reality is that although the media love popular candidates like Poe and Duterte, because of their freshness and unpredictability, they can also fall out of love with the flavor of the month. As Arianna Huffington has said, “ When the media fall out of love they fall out of love very quickly.”